The Kyoto Protocol has received a last minute reprieve but is
likely to be mostly superseded by the Durban Platform, the key
outcome of COP17. According
to the COP17 draft decision a new group, the Ad Hoc Working
Group on the Durban Platform for Enhanced Action, will develop by
2015 a new protocol or other legally binding outcome for emissions
reduction, to come into effect and be implemented from 2020.
The key differences between Kyoto and Durban are:
there will now be a common legal framework for developed and
the US, China and India are on board; and
Kyoto included legally binding commitments – Durban
only has an agreement to agree on such commitments.
Starting in the first half of 2012, the Durban Platform Working
Group will plan its work on matters such as mitigation, adaptation,
finance, technology development and transfer, transparency of
action, and support and capacity-building.
The preparedness of the EU, among others, to take on a second
commitment period under the Kyoto Protocol commencing from 2013
potentially provides life support to the only international legal
framework to achieve emission reductions. A second commitment
period appeared critical in getting agreement from China and India
to the Durban Platform. Nevertheless the Kyoto Protocol is likely
to provide ongoing architectural support for the agreement
contemplated under the Durban Platform, since its rules will
continue to provide support for market mechanisms such as the Clean
What the second commitment period looks like for Australia
remains to be seen – Australia only indicated that it was
"prepared to consider" a further commitment but it is
expected that it will be consistent with Australia's unilateral
5% reduction target on 2000 levels while the Durban Platform is
still being negotiated.
Australia also used the opportunity of the Durban Conference to
get agreement from the European Union and New Zealand to examine
opportunities to link Australia's carbon price mechanism with
their emissions trading schemes.
Other outcomes included agreement on:
improved transparency and better monitoring, reporting and
verification of countries' emissions reduction actions;
a new Green Climate Fund to help developing countries reduce
emissions and adapt to climate change;
progressing the REDD+ mechanism;
new market mechanisms to drive opportunities for low cost
greenhouse gas abatement;
an Adaptation Committee to help developing countries adapt to
the impacts of climate change; and
rules for a new technology mechanism to speed up transfer of
low pollution technologies to developing countries.
The next key date is 28 February 2012, when parties must submit
their views on raising what the conference called the "level
of ambition" to achieve significant mitigation, so that a
workplan can be launched.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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